Your client has been served with foreign process. Was service effected in compliance with the Hague Convention?

You’ve been consulting with a woman who is contemplating divorcing her husband who currently resides in Japan. The client has not yet officially decided to file because she hopes to work things out with her husband. One day, the client comes to your office to discuss a letter she received earlier that same day. The letter is in a business-sized airmail envelope with Japanese stamps from the “Tokyo Family Court” and is addressed to the client. Inside the envelope are eight pages of seemingly judicial documents written entirely in Japanese. Neither you nor your client is able to read Japanese. Then you ask a practical question: Assuming this is service of process from Japan (or any other country), is it valid?

The following steps will provide guidance to answer this question when the Hague Convention applies.

Step 1: In what country did the judicial documents originate?

The country of origin is important because it determines how service of process may be effected. Virtually all originating process from around the world is served by one of three procedural mechanisms:

The Hague Service Convention (which governs international service of process involving most of North America, Europe, Australia, and Asia),

Service via Letter Rogatory (which governs formal service of process in countries not party to the Hague or Inter-American Conventions).

Since Japan and the United States are both signatories to the Hague Convention, the service in our hypothetical must be analyzed in the context of that Treaty.

Step 2: Who in the Originating State requested service?

Only “competent” forwarding authorities or judicial officers may request service under the Hague Convention. In some countries, like China, only certain courts and the Central Authority may request service.

In other countries, like France, the courts as well as French bailiffs are authorized requesting authorities. Japan’s declarations indicate that only Japanese judges are competent to request service; so in our hypothetical, the mailing must have been authorized by the Judge.

Step 3: What are the documents being served?

After determining both which country and which official authority requested service of process, you must now determine the Destination country’s declarations to the Hague Convention.

In the above hypothetical the Destination country is the United States. So, step 3 involves a review of the US’s declarations to the Treaty. The declarations may modify the methods of service available to the plaintiff and may dictate a translation requirement. So, in addition to meeting the general rules outlined in the Convention, litigants must also abide by the Destination State’s specific declarations and reservations.

In its reservations and declarations, the US did not object to any of the methods of service permitted by the Hague Convention. This means that all methods of service — via the US Central Authority, via a competent judicial officer, or via mail — are all permitted in the US. Further, the US requires that the defendant be served with the Japanese court documents along with an English translation when seeking compulsory service via the US Central Authority.

In our hypothetical, the documents were provided in Japanese only. Service, though, was effected by mail, not through the Central Authority. The US’s declarations to the Hague Convention do not require that documents served by mail must be translated. If service had been routed via the Central Authority with no translation into English, then service would become voluntary and the defendant would be given the option to refuse service for lack of translation. This requirement is not applicable when serving by mail.

Remember, though, that service must comply in all cases with US due process requirements which mandate that the defendant be served in a language s/he understands.

Step 4: Do the originating state’s rules authorize the method of service?

To determine if the State of Origin has an enabling statute that authorize service, consult the local rules or a local attorney. Article 108 of the Japanese Code of Civil procedures provides that service of process abroad to a Hague Convention member country must be effected via the Destination State’s Central Authority.

Based on the above analysis, we can determine with a high degree of certainty that service by mail in our hypothetical was improper. The US permits service by mail, but Japanese rules require that service be effected via the Central Authority. Plaintiff cannot rely on the mail service provision of the Hague Convention and the US’s permissive declarations to circumvent Japan’s local rules.

If your defendant is served in a country not a party to the Hague Convention, the inquiry is similar. Contact Legal Language Services to review your documents for advice as to whether service was properly effected.

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]]>https://www.legallanguage.com/legal-articles/4-steps-for-determining-if-foreign-service-of-process-is-valid/feed/0How to Obtain Evidence from Russia of Alleged Interference with US Electionshttps://www.legallanguage.com/legal-articles/how-to-obtain-evidence-from-russia-of-alleged-interference-with-us-elections/
https://www.legallanguage.com/legal-articles/how-to-obtain-evidence-from-russia-of-alleged-interference-with-us-elections/#respondTue, 08 Aug 2017 14:15:43 +0000https://www.legallanguage.com/?p=6729Is it possible to gain access to evidence located in Russia? The short answer is yes if a request for judicial assistance from a court in Russia is made and granted, but the devil is in the details of such requests.
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Even before the 2016 Presidential Election, the FBI was investigating the Trump Campaign for alleged inappropriate financial connections with Russia.[1] After the election, Trump’s campaign manager, Kellyanne Conway, stated “with categorical certitude that no one involved with the Trump Campaign had any contact with Russians trying to influence the election.”[2]

The first hint that there were cracks in the story occurred when Attorney General Jeff Sessions recused himself from the Trump Campaign investigation. This prompted the acting AG to appoint former FBI Director Robert Mueller as special counsel to oversee the probe into alleged connections between the Trump Campaign and the Russians.[3]

More recently, the President’s son, “Donald Trump Jr., and former Trump campaign chair Paul Manafort have reached an agreement with the Senate Judiciary Committee” to provide closed door testimony on how the Trump Campaign operated.[4] President’s son-in-law and close personal advisor, Jared Kushner, is also now prepared to give adverse testimony.[5]

Will we ever get the full details concerning the relationship between the Trump Campaign and the Russians? Hard to say; after all who knows if we ever really got the full details concerning the assassination of President Kennedy?

But more generally, suppose some of the crucial witnesses or documents are located in Russia. Can Mueller or the Senate access this evidence? The short answer is yes if Mueller or the Senate request judicial assistance from a court in Russia and if the Russian court grants the request.[6] But the devil is in the details of such requests.

Does Evidence Sought Pertain to a Civil or Commercial Matter?

Before judicial assistance can be requested, one must first determine if the evidence sought in Russia pertains to a civil or commercial matter. The US legal system takes the view that all non-criminal investigations or trials are governed by civil law. In contrast, civil law countries, including Russia[7], take a more narrow and nuanced view of the scope of civil law.

Russia has a separate code regulating civil transactions[8] and governmental agencies.[9] Thus under Russian law it is possible a Congressional subpoena or subpoena from a special counsel may be deemed the realm of administrative law rather than civil law. This distinction is important because it determines the procedure by which evidence in non-criminal cases is taken abroad.[10]

Because treatises on Russian law are limited, we cannot definitively determine if Russia would hold that an administrative (e.g., a Senate or a special prosecutor) subpoena falls under Russian civil or administrative law. Therefore, we analyze both situations. But from a practical point of view, as will be discussed, obtaining judicial assistance from a Russian court is unlikely to succeed pursuant to either procedure.

Procedures for Executing an Administrative Subpoena under Civil Law

Let’s assume that under Russian law, an administrative subpoena falls under the civil law umbrella. Both Russia and the US are members of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (23 U.S.T. 2555) (hereafter the Hague Evidence Convention). The Hague Evidence Convention defines the procedure by which judicial assistance to take evidence in Russia is requested.

The first step to obtain evidence is to draft a Letter of Request addressed to “the appropriate judicial authority” in Russia. The forum court judge must execute the Letter of Request after which it must be translated into Russian and transmitted to the Russian Central Authority (CA).

The CA will review the Letter of Request for compliance with the Evidence Convention and, if appropriate, will forward the Request to a court having jurisdiction over the witness. That Russian court will hold a hearing on whether to execute the Letter of Request. The Request may be executed all or in part – some courts “blue pencil” the requested evidence — and the court will set a date for the Letter’s execution.

In theory, the evidence requested (documents or a deposition) are obtained on the date of execution of the Letter of Request. However, the reality is that, since 2003, the Russian CA has been a non-functioning black hole into which requests to take evidence fall, but are never acted upon.[11]

Procedures for Executing an Administrative Subpoena under Administrative Law

Now let’s assume that under Russian law an administrative subpoena is handled pursuant to administrative law procedures. The scope of the Hague Evidence Convention is limited to civil and commercial matters. Therefore, given the above assumption, the Hague Evidence Convention does not apply and litigants must resort to the procedural stand-by, the Letter Rogatory.

Like a Hague Letter of Request, a Letter Rogatory is drafted from the perspective of and executed by the forum court. It is then transmitted to the Russian Ministry of Foreign Affairs via diplomatic pouch.[12] The Russian Foreign Ministry will forward the Letter Rogatory to various administrative and judicial bodies before it is then forwarded to a court having jurisdiction over the witness.

Again there will a hearing at the conclusion of which the court will set a data for the execution of the Letter Rogatory. At this point, no one will be surprised to learn that letters rogatory also fall into the black hole and are never acted upon. Research revealed one decade-old report observing that Russia did execute a Letter Rogatory for arbitration.[13]

Conclusion

The bottom line is that neither the US Senate nor Mr. Mueller are likely to obtain any evidence located in Russia regardless of whether they use the Hague Evidence Convention or a formal Letter Rogatory.

Let’s suppose both the Russian CA and the Russian Foreign Ministry suddenly become functional. Would the US Senate or Mr. Mueller now be able to obtain evidence in Russia? Perhaps, but probably not because the documents may be classified or there may be issues of diplomatic immunity. Just as the US considers certain information to be classified (disclosure of which can lead to jail time), so too do the Russians.

This classification applies not only to the information, but how the information was obtained. Thus it is unlikely Russians will turn over information on Trump’s alleged collusion because it would require disclosure of the classified means by which Trump was contacted. In contrast to modern notions of classified information, diplomatic immunity dates from the time of Ancient Greece and Rome.[14] The width and breath of diplomatic immunity vary within the diplomatic community; even ambassadors do not receive absolute immunity for all activities. But, diplomatic immunity adds another non-disclosure layer to evidence in Russia.

Even under the best of circumstances any investigation into Trump’s activities with Russia is unlikely to unearth evidence in Russian control. To further their investigation, the Senate and Mr. Mueller will only be able to rely on evidence in the control of the US and its allies.

If you require assistance obtaining evidence abroad, contact LLS today to learn how we can assist you.

[6] This paper assumes that the Senate or Mueller would be issuing a non-criminal subpoena.

[7] The Robbins Collection: The Common Law and Civil Law Traditions. University of Berkeley; https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html (25 July 17).

[8] THE CIVIL CODE OF THE RUSSIAN FEDERATION (Part One No. 51-FZ of November 30, 1994,Part Two No. 14-FZ of January 26, 1996, Part Three No. 146-FZ of November 26, 2001 and Part Four No. 230-FZ of December 18, 2006); see also Christopher Osakwe: Anatomy of the 1994 Civil Codes of Russia and Kazakstan: A Biopsy of the Economic Constitutions of Two Post-Soviet Republics. 73 Notre Dame LR: 1413 (2014)(unlike other civil law countries that have separate codes for civil and commercial law, the Russian Civil Code Covers both civil and commercial matters –and even allows for plaintiffs to bring tort actions against the government).

[9] Federal Law No. 196-FZ of December 30, 2001 of the Enactment of the Code of Administrative Offences of the Russian Federation.

[12] The Department of State requires a $2,275 handling fee for this service.

[13] Glenn P. Hendrix: International Judicial Assistance from American courts in Russian litigation and Arbitration Proceedings. Presented at the Third Local CIS Counsel Forum, St. Petersburg, Russia June 27, 2008.

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]]>https://www.legallanguage.com/legal-articles/how-to-obtain-evidence-from-russia-of-alleged-interference-with-us-elections/feed/0Trump, Agents Provocateurs, and Rethinking International Service of Processhttps://www.legallanguage.com/legal-articles/trump-agents-provocateurs-and-rethinking-international-service-of-process/
https://www.legallanguage.com/legal-articles/trump-agents-provocateurs-and-rethinking-international-service-of-process/#respondTue, 01 Aug 2017 14:11:57 +0000https://www.legallanguage.com/?p=6722If the nation-state is on its way out, is it time for international law attorneys to rethink international service of process?]]>

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Did Putin send his agents provocateurs to sell Donald Trump Jr. “dirt” on Hillary Clinton? If so, then, to paraphrase the late Senator Howard Baker, what did President Trump know and when did he know it?

On one level, these are questions important to all Americans and should be answered. On another level, why are we surprised that countries use agent provocateurs to influence and interfere in the internal affairs of the United States?

A Historical Precedent for International Interference

A hundred years ago, Benito Mussolini’s Italian agents provocateurs were bank-rolling the British Union of Fascists in a blatant attempt to influence elections in Great Britain.[1] As detailed in the Church Committee’s report,[2] the United States would not reach its apogee with respect to interference with the internal affairs of other nations until after World War II. The Committee’s report documented how the United States’ agents provocateurs were involved in the assassinations of a number of foreign leaders including Patrice Lumumba of the Democratic Republic of the Congo, the Diem brothers of Vietnam, and a number of attempts to assassinate Fidel Castro of Cuba.

While in recent years the US has shied away from such overt attempts to influence and interfere in the internal affairs of other nations, we only need to look at the recent invasions of Iraq to know we are still meddling in other nations’ international affairs.

To understand why it is offensive for one country’s agents provocateurs to attempt to influence and interfere in the internal affairs of other nations, let’s turn back the hands of time to the Treaty of Westphalia — concluded in 1648 — which ended the Thirty Years’ War.

The Treaty of Westphalia and the Creation of Nation-States

Prior to the Thirty Years’ War, the use of agents provocateurs to meddle in the internal affairs of other countries had become the norm. For example, Cardinal Richelieu and his agents were “successful in converting the ‘Thirty Years’ War’ from a dispute between Catholics and Protestants to that between nationalism and Habsburg hegemony following the defeat of Habsburg.”[3]

By the end of the Thirty Years’ War in 1648, Europeans had come to loathe the ability of agents provocateurs to meddle in the internal affairs of other countries in order to foment war. Accordingly, the concept of the nation-state was born in the Treaty of Westphalia. The idea behind the nation-state is that the nation is a sovereign with absolute control over its internal affairs.

At the time of the Treaty, most countries were monarchies (England would not become a constitutional monarchy until 1688 when the Glorious Revolution ended the reign of the Steward dynasty.) While spying undoubtedly occurred after the Treaty was signed, spying was done for prognostication to anticipate the sovereign’s next move.

Under the Treaty, the role of the agent provocateur was largely left to foreign ministers; most notably Lord Castlereagh (representing Great Britain), Klemens von Metternich (representing the Austrian-Hungarian Empire), and Charles de Talleyrand (representing France).

The monarchs and foreign ministers did not so much seek to influence and interfere in the internal affairs of other nations as much as they sought to maintain the status quo. For example, at the end of the Napoleonic Wars, Lord Castlereagh successfully argued against having France pay reparations. It was not that England did not need the money so much as it was that Castlereagh did not want to interfere with France’s internal affairs.[4]

Given such monarchial control of the new nation-states, foreign affairs analysis looked increasingly like the analysis of a chessboard.

The Return of Agents Provocateurs

The principles of sovereignty articulated in the Treaty of Westphalia remained in place for 350 years. But the twentieth century ushered in a number of forces that have undermined nation-states.

First and foremost of these forces was the rise of entities with the economic wherewithal of a nation-state. By the 1960s General Motors was managing more money than most countries. Today, California’s $2.4 trillion economy is the sixth largest economy in the world, behind the US, China, Japan, Germany, and the United Kingdom.[5]

Even economic actors with smaller economic wherewithal like Exxon Mobile or Doctors Without Borders have taken on a number of functions that once were provided by nation-states (e.g., their own foreign affairs departments). Meanwhile a number of nation-states like Syria and Afghanistan have become “failed states” that no longer provide even the most basic governmental functions (e.g., education and police).

The impact of these and other forces during the twentieth century weakened the notion that nation-states are sovereign – at least weakened the notion that one nation’s agents should not interfere or intervene in the affairs of another nation. Hence, the reason for the return of agents provocateurs to the world of politics after a 350-year hiatus.

Not surprisingly, with the rise of forces inimical to nation-states and the return of agents provocateurs, a paradigm shift is taking place in the world of foreign affairs.

As summarized in Anne-Marie Slaughter’s 2017 book The Chessboard and the Web: Strategies of Connection in a Networked World, foreign affairs experts are increasingly viewing international affairs not through the chessboard paradigm, but rather through the network analysis paradigm. Under the latter paradigm, foreign affairs are understood in terms of how nation-states are connected to each other and are connected to multinational corporations, the State of California, and, of course, to agents provocateurs who often carry the more modern appellation of “terrorists”.

Do We Need to Rethink International Service of Process?

The origin of service of process dates to the 1215 signing of the Magna Carta, which created due process rights.[6] By the sixteenth century, the sheriffs of England were employed full-time serving process and collecting debt.[7] In the twentieth century, even as the concept of the nation-state was under siege, the nations of the world came together to enact not one but two international conventions for service of process.[8] Together these conventions standardized international service of process for the vast majority of the world’s countries.

Given the long and venerable tradition of service of process, it does not seem likely that it will be going the way of the dinosaur any time soon. This conclusion is bolstered by two other observations.

First, in many countries — and especially in China, Germany, and Japan — the paradigm for service of process is that it is an exclusively judicial function. Because the judiciary is an integral component of the nation-state, it seems likely that the nation-state would have to vanish along with its judiciary before service of process will require rethinking.

Second, service of process is a way for nation-states to protect their citizens from foreign governments, the State of California, and other agents provocateurs. Unless the nation-state were to totally vanish, it seems unlikely that there will be a need for a paradigm shift in service of process.

While a paradigm shift may restructure diplomatic thinking in the post-Treaty of Westphalia world, the paradigm for service of process is likely to remain unchanged.

[5] Chris Nichols: California: 6th largest economy in world and one of highest poverty rates in nation? Politifact California; http://www.politifact.com/california/statements/2017/jun/22/antonio-villaraigosa/does-california-have-6th-largest-economy-world-and/ (17 July 17).

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]]>https://www.legallanguage.com/legal-articles/trump-agents-provocateurs-and-rethinking-international-service-of-process/feed/0Why Serving a Subpoena Abroad Presents Unique Challengeshttps://www.legallanguage.com/legal-articles/why-serving-a-subpoena-abroad-presents-unique-challenges/
https://www.legallanguage.com/legal-articles/why-serving-a-subpoena-abroad-presents-unique-challenges/#respondWed, 26 Jul 2017 15:27:47 +0000https://www.legallanguage.com/?p=6688Attorneys tend to think that the international service of a subpoena is analogous to international service of process. In reality, though, the two are quite different.]]>

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For many attorneys, service of process and service of a subpoena are analogous processes. True, they are not identical processes: Whereas service of process is only upon a defendant and the clerk of the court signs the summons, the service of a subpoena may be upon a defendant or a third-party witness and is signed by the attorney seeking the evidence.

Nevertheless, there are still many commonalities between service of process and the service of a subpoena in the US including:

Service tends to be personal

The process server must be over 18 years of age and a non-party to the litigation

The fee for service is modest ($50-$100 per serve)

Service is usually effected within a few days days

Not surprisingly, attorneys tend to think that the international service of a subpoena should also be analogous to international service of process. In reality, though, the two are quite different.

Defining the Differences Between International Service of Process & International Service of a Subpoena

Service of process is governed by the Hague Service Convention for countries in North America, parts of South America, Western Europe, selected countries in Eastern Europe, Australia, and much of Asia.

Regardless of the method used, the procedure used to effect service pursuant to a Treaty or to a Letter Rogatory is basically the same: The documents to be served (plus translated copies if service is to a non-English speaking country) are transmitted by a prescribed methodology to the destination country where service is effected by a local court that has jurisdiction over the defendant and in accordance with local laws.

In contrast — with one exception discussed below — a subpoena issued by a US court is worthless beyond the territorial borders of the United States.[1] The “subpoena power of a court cannot be more extensive than its jurisdiction.”[2] Given the recent Supreme Court’s adoption of the “at home” standard as the basis for determining jurisdiction,[3] it is doubtful that US courts have jurisdiction over even large foreign multinational corporations, let alone individual foreign witnesses who lack minimum contacts with the US.

Even within the United States, a court “may only compel compliance” of a subpoena “within the state or within 100 miles of where “the person resides, is employed, or regularly transacts business in person.”[4] This is known as “the 100 mile rule.”

The Process of Serving a Subpoena Abroad

Making a Formal Request for Judicial Assistance

In virtually all situations where an attorney seeks to depose an overseas witness or seeks the production of documents in the position, custody, or control of an overseas witness, the attorney will need to make a formal request for judicial assistance. If the witness is located in many (but not all) European countries, Australia, China, India, Korea, or Mexico, a formal request for judicial assistance is made pursuant to the Hague Evidence Convention.

For all other countries (including Canada and Japan) a formal request for judicial assistance is made pursuant to a Letter Rogatory. Both the Hague Evidence Convention and the Letter Rogatory require that the US forum court judge execute the request for judicial assistance. This means that an application or motion must be made to the court regardless of which method is used to take evidence abroad.

Once it receives a motion to execute the Request for International Judicial Assistance (“Request” or “Letter Rogatory”), the forum court will hold a hearing. Thus, from the start, opposing counsel has the chance to quash all or parts of the Request.

How Opposing Counsel Could Quash the Request

From the judge’s perspective, since the hearing on the Request is tantamount to determining the validity of a subpoena, opposing counsel could argue to have the Request quashed for many reasons. Some grounds for quashing the Letter Rogatory assert that the judicial assistance requested:

Cannot be obtained within the time limits established by the court for discovery

Is privileged

Would violate the “100-mile” rule described above

Transmitting the Request Abroad

Once the court has executed the Letter Rogatory, it must be translated (if applicable) and then transmitted abroad. Attorneys should transmit the Request to the “appropriate judicial authority” in the country where the witness is located.

If the witness resides in a country party to the Hague Evidence Convention, simply overnight the Request to the appropriate Central Authority. If judicial assistance is being requested via Letter Rogatory, the Letter Rogatory must be transmitted through diplomatic channels for which the Department of State charges a $2275 handling fee.

Once the request for judicial assistance arrives at the appropriate judicial authority, the foreign court has three options for executing the request:

The court may find that requested evidence is relevant, not overbroad, does not violate any local laws, and the interest of justice compels the execution of the request. If all of these conditions are met, the court will grant the request and set a date for execution of the request.

Alternatively, based on the above criteria, the court may find that it is totally unreasonable to order the evidence requested and will refuse to execute the Request.

More likely, the court will have some concerns with the request for evidence and hold a formal hearing. Because of this possibility it is always advisable to retain local counsel. At the conclusion of this hearing, the court may “blue-pencil” the request for evidence and set a date for its execution.

When is the Date of Execution?

The date of execution is the date when the evidence is produced. For documents, the date of execution may be the date by which the documents have to be shipped to the requesting attorney. For a deposition, the date of execution is the date when the witness is to be examined.

In Hague Evidence Convention member countries, the date of execution is usually within a few months of the date the Request arrived abroad, although slower countries may take up to six months. The date of execution of a formal Letter Rogatory is often much longer and is left to the foreign judicial authority’s discretion.

Two Exceptions to the Above Rules

1. Some countries will allow evidence to be taken from voluntary witnesses. In Canada, Mexico, and the United Kingdom, evidence can be taken from a voluntary witness without formality or permission. Other countries, like Switzerland and France, also allow voluntary evidence-taking, however, they do impose some formalities (e.g., depositions must occur at a US consulate or notice must be given to the country’s central authority).

In a small minority of countries, like China, with a strong tradition of viewing evidence-taking as strictly a judicial function, the mere act of contacting a witness to see if she is cooperative may be construed as a criminal act. Accordingly, attorneys contemplating taking evidence from overseas witnesses should familiarize themselves with local laws before contacting the witness.

2. The second exception concerns US citizens and residents living abroad. Like the obligation to pay taxes when they are abroad, US citizens and residents are obligated to respond to subpoenas issued by US judicial authorities.[8] The service of a subpoena upon a US citizen or resident located overseas is authorized by 28 USC §1783; which is explicitly incorporated by reference into F.R.C.P. 45.

Serving a Subpoena on an American Abroad

For individuals living abroad, the issuance of a subpoena under §1783 is inappropriate absent evidence that the target of the subpoena is an American citizen or resident;[9] without such evidence the subpoena should either not be issued or quashed.[10] In addition to the Rule 45 requirements for all subpoenas, case law has imposed two other requirements for issuing a §1783 subpoena to an American citizen or resident living abroad:

The particular testimony is necessary in the “interests of justice;” and

It is not possible to obtain the witness’s testimony in admissible form without his personal appearance.[11]

Under this two-pronged test, the first prong is satisfied if the proponent of the subpoena demonstrates the evidence sought is “relevant under the liberal standards set forth in Federal Rule of Civil Procedure 26(b).”[12]

Under the second prong of this test, the proponent of the subpoena must show that it would be impracticable to obtain the desired evidence by other means as a demonstration of “impossibility is not required.”[13] “The decision to issue a subpoena under this statute is left to the sound discretion of the court.”[14]

An interesting question is how have the courts treated the 100-mile rule when they issue a §1783 subpoena? There is surprisingly little case law to provide guidance. At least one court, in dicta, considered the 100-mile rule a barrier to the issuance of a §1783 subpoena.[15] However, the majority opinion is that the 100-mile rule is not applicable to overseas US citizens and residents.[16]

[8]Blackmer v. U.S., 284 U.S. 421, 438 (1932). “The jurisdiction of the United States over its absent citizen … is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them.” Id..

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]]>https://www.legallanguage.com/legal-articles/why-serving-a-subpoena-abroad-presents-unique-challenges/feed/0Delays and Default Judgement: Service in China via the Chinese Central Authorityhttps://www.legallanguage.com/legal-articles/delays-and-default-judgement-how-do-you-solve-a-problem-like-china/
https://www.legallanguage.com/legal-articles/delays-and-default-judgement-how-do-you-solve-a-problem-like-china/#respondTue, 18 Jul 2017 20:55:30 +0000https://www.legallanguage.com/?p=6700Legal Language Services and other Hague Convention member countries have noticed that the time required to effect service of process in China via the Chinese Central Authority has substantially increased in the last six to nine months and currently is in excess of a year.]]>

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Because China and the United States are signatories to the Hague Service Convention (“Hague Convention” or “Convention”), service in China is proper only when effected pursuant to the terms of the Treaty. Volkswagen v Schlunk, 486 U.S. 694 (1988). Pursuant to China’s Declarations to the Hague Convention, service by mail and agent are prohibited so the only method available for service in China is via the Chinese Central Authority (CA).

After the CA reviews the Hague Request for compliance with the Treaty, the Request is then successively passed to the Chinese Supreme Court, a provincial court, a prefecture court, and finally to the People’s Court that has jurisdiction over the defendant. It is the People’s Court that ultimately arranges the actual service in accordance with Chinese Law. Once a defendant is served, the proof of service (Hague Certificate of service) is passed up the judicial chain of command in the reverse order.

With so many intermediaries involved in service it’s understandable that service takes a long time. Even in the best of times, service of process in China typically took eight to nine months. But we are no longer in the best of times.

Legal Language Services and other Hague Convention member countries have noticed that the time required to effect service of process in China has substantially increased in the last six to nine months and currently is in excess of a year. In addition, it is becoming impossible to obtain any update from the CA beyond “your Request is in process.”

The cause of the CA’s slow down, and how long it will last, are unknown. Given that Article 15 of the Convention allows for forum courts to enter default judgement against a foreign defendant absent a Hague Certificate of Service under certain conditions, there is a growing issue of when default judgements are proper against Chinese defendants.

After more than a year of silence from the Chinese Central Authority concerning service of the second amended complaint, the plaintiffs moved for a default judgement. The individual defendant responded to the motion asserting that he had not been properly served because:

The plaintiffs had no proof of service; and

The defendant provided a document from the appropriate People’s court stating that the court had not received instructions to serve the defendant a second time

The fact that the defendant had been served with the original complaint explains why the defendant had knowledge of the motion for default judgement –which makes the fact pattern unique. Accordingly, the defendant argued that he had an affirmative defense against a default judgement.

The Court’s Opinion

The court began its opinion with a review of Article 15’s two paragraphs. The first paragraph provides:

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or
b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

The second paragraph states:

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –

(a) the document was transmitted by one of the methods provided for in this Convention,
(b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

The court then observed that the defendant’s affirmative defense was based on the notion that the evidence from the People’s Court “of non-service activates Paragraph One’s prohibition on judgment, which cannot be overridden by Paragraph Two.”

The court disagreed. While acknowledging that the case law on this subject is scarce, the court stated:

Paragraph One prohibits judgment unless a person has been served. Signatories, including the United States, can elect to weaken this requirement by adopting the procedure of Paragraph Two. Only a certificate issued by China’s Central Authority can affect whether that procedure is properly invoked. Affirmative evidence of non-service from the defendant fits nowhere within Article 15’s default judgment protocol. In this case, the existence of such evidence is unsurprising, given that the Chinese authorities have never responded to Plaintiffs’ transmission of the service documents or requests for updates.

Accordingly, the court granted the plaintiffs’ motion for a default judgement.

No Discussion of US Reservations

Interestingly, the court’s opinion mentions, but does not discuss, the US reservations to the Hague Convention. With respect to Article 15 the US has made the following reservation.

In accordance with the second paragraph of Article 15, it is declared that the judge may, notwithstanding the provisions of the first paragraph of Article 15, give judgment even if no certificate of service or delivery has been received, if all the conditions specified in subdivisions (a), (b) and (c) of the second paragraph of Article 15 are fulfilled.

The court’s failure to discuss the US reservations is not trivial. On appeal the defendant could argue that conditions (a) and (c) were not met. Condition (a) requires a finding that the documents for service were transmitted to CCA; and yet the opinion only states that the CCA had not acknowledged receipt of the document.

“Transmission” and “acknowledgement of receipt” are not the same thing. For condition (a) to be valid in this case the court had to accept as true the plaintiff’s statement that it had used an “international process serving company to transmit” the documents to the CA and then make the inference that this company did in fact deliver the documents to the CA. (Note: Legal Language Services did not handle the service in this case.)

Why does an inference need to be made? LLS routinely transmits service of process to China by Federal Express, which provides documentation that the Hague Request was delivered to the CA. It is unclear why the court did not demand proof of delivery to satisfy condition (a).

In the absence of a Hague Certificate of Service, condition (c) of the US reservation to Article 15 imposes a due diligence requirement on the movant for default judgement. The court’s opinion in this case provides no details of the plaintiffs’ attempts to contact the Chinese Central Authority. One wonders why this information was not included in the court’s opinion.

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]]>https://www.legallanguage.com/legal-articles/delays-and-default-judgement-how-do-you-solve-a-problem-like-china/feed/0When a Central Authority Rejects Service, What’s Your Next Move?https://www.legallanguage.com/legal-articles/when-a-central-authority-rejects-service-whats-your-next-move/
https://www.legallanguage.com/legal-articles/when-a-central-authority-rejects-service-whats-your-next-move/#respondFri, 14 Jul 2017 14:59:27 +0000https://www.legallanguage.com/?p=6675A not uncommon issue arising with international service of process under the Hague Service Convention is what an attorney should do when a Central Authority or foreign court rejects service upon a defendant. In re Takata, MDL No. 2599 (S.D. Fla. 2017), the special master appointed to review this situation provides some thoughtful guidance.]]>

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Legal Language Services submits hundreds of Hague Requests, Inter-American Requests and Letters Rogatory to foreign judicial authorities around the world. Most of these are served by foreign judicial authorities with little fanfare. Occasionally, some aren’t served because the address is improper or the defendant has moved.

However, there are other cases where service of process is rejected immediately by the foreign judicial authority for Article 13 violations of its sovereignty or public policy or infringement on its citizens’ rights.

In cases like these, some attorneys may wonder what their next steps should be. What should one do when a Central Authority or foreign court rejects service upon a defendant?

Background

The Supreme Court in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) held that where the Hague Service Convention (“Hague Convention” or “Convention”) is applicable, its procedures are to be followed. The Schlunk rule is restated in the Fed. R. Civ. P. 4 advisory committee’s note (1993). The scope of the Convention is limited to civil and commercial matters.

The Convention also stipulates that service will occur in conformity with the Destination State’s laws. Under German law, for example, any litigation that allows damages to be paid in whole or in part to the government — i.e. litigations covered by split-recovery statutes — is neither a civil or commercial matter; it is a matter of Public Law.

Facts

In this class action lawsuit, the plaintiffs attempted to service BMW for the insertion of faulty air bags into their automobiles. The case was filed in Iowa and the plaintiffs sought statutory and punitive damages. Under Iowa law, part of any damages recovered could be returned to the state.

Citing a violation of Germany’s split recover statute, a Munich court rejected the BMW-plaintiffs’ Hague Request. The plaintiffs then filed a motion for service by other means. Fed. R. Civ. P. 4(f)(3). Specifically, the plaintiffs asked to be allowed to serve BMW’s US corporate counsel.

BMW’s position was that the Hague Convention “provides the exclusion method for service of process upon German entities, and therefore all other methods of services are ‘illegal in Germany'” (emphasis in the original). Accordingly, BMW argued that if the plaintiffs disagreed with the Munich court’s ruling, the plaintiffs should file an appeal with the German courts.

Analysis

The special master observed that the Hague Convention was not applicable to the plaintiffs’ “claims because the Munich Court’s ruling is dispotitive on that issue.” The Special Master than reviewed United States ex rel. Bunk v. Birkart Globistics GmbH & Co., 1:02-CV-1168, 2010 WL 423247 (E.D. Va. Feb. 4, 2010), which is factually very similar to the instant case.

In Bunk, the plaintiffs’ claims for damages also ran afoul of the split recovery statute. When the German Central Authority rejected service, the Bunk plaintiffs appealed the case in Germany. After the Frankfort Appeals Court affirmed the trial court’s rejection of service, the Bunk plaintiffs sought service by other means from the forum court.

The US district court hearing Bunk’s request concluded that the Frankfort Appeals Court’s “judgment [was] dispositive on the issue of whether the Hague Convention applies to service abroad in this case, even though an American court would undoubtedly consider this action ‘a civil or commercial matter’ within the American legal system.” However, this court’s “de novo determination of whether the Hague Convention applies, after German authorities had decided that it does not, would effectively frustrate the intended purpose of Rule 4(f).”

The US district court then observed that nothing in the Treaty mandates that after a Destination State rejects service, a plaintiff must exhaust all of the Destination State’s judicial remedies. As BMW had failed to cite any cases or other authority supporting mandating such an “exhaustion requirement,” the special master found the logic of the Bunk court to be persuasive.

Having concluded that the Hague Convention was not applicable, the special master needed to determine whether service upon BMW’s US counsel comports with constitutional notions of due process. To meet this requirement, the alternative method of service “must be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.” Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007 at 1016–17 (2002); quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 at 314 (1950).

Because many cases have examined whether service upon a foreign corporation’s US counsel passes constitutional muster, the special master recommended such service in this case. See Brookshire Bros., Ltd., 2007 WL 1577771, at *1 (2007); Fru Veg Mktg., Inc., 896 F. Supp. 2d 1175 at 1182 (2012); US Commodity Futures Trading Comm’n v. Aliaga, 272 F.R.D. 617 at 621 (2011).

For more information about serving process abroad, contact us today and discover how we can assist you.

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]]>https://www.legallanguage.com/legal-articles/when-a-central-authority-rejects-service-whats-your-next-move/feed/0Hague Service v. Alternative Service: Is There A Hierarchy?https://www.legallanguage.com/legal-articles/hague-service-v-alternative-service-is-there-a-hierarchy/
https://www.legallanguage.com/legal-articles/hague-service-v-alternative-service-is-there-a-hierarchy/#respondMon, 05 Jun 2017 17:00:58 +0000https://www.legallanguage.com/?p=6603Most federal courts require plaintiffs to attempt service via the Treaty before the courts are willing to authorize service by other means. But a recent judicial order makes it clear that Rule 4 is not explicitly hierarchical.]]>

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When serving process abroad, the Supreme Court has mandated that where the Hague Service Convention is applicable, it is to be followed. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988); see also Fed. R. Civ. P. 4 advisory committee’s note (1993). Accordingly, most federal courts will require plaintiffs to at least attempt service via the Treaty before the courts are willing to authorize service by other means.

An Overview of the Court Case

When negotiations concerning patent infringement broke down between Godo Kaisha IP Bridge 1 (“IPB”) (based in Tokyo) and Xilinx (based in San Jose), the parties raced to the court house to be the first to file. IBP filed in Texas and Xilinx filed in California.

It is undisputed that IBP filed first. To impair Xilinx’s ability to have the two actions joined, IBP’s counsel refused to accept service (on behalf of his Japanese client) from the California court. IBP’s counsel took the position that his client had the “right” to be served under the Hague Convention (see Rule 4(f)(1)), which would take months.

In the eyes of IBP’s counsel, they would be “well into the ED Tex case by the time [Xilinix’s] case is served” –thereby making it unlikely that the two actions could be combined. Xilinx responded by asking the California court for service by other means. See Rule 4(f)(3).

The Supreme Court’s Ruling

After admonishing the attorneys on both sides for their lack of “civility, courtesy and professional integrity”, J. Donato examined IBP’s notion that it had a right to be served pursuant to the Hague Convention. In the 9th Circuit,

Rule 4(f)(3) allows for service “by other means” so long as it is directed by the court and is not prohibited by international agreement. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014-15 (9th Cir. 2002). …Service under Rule 4(f)(3) is not “a ‘last resort’” or ‘extraordinary relief.’…It is merely one means among several which enables service of process on an international defendant.” (Recurrent citations omitted.)

That is to say, in the court’s opinion, Rule 4(f)(1) and Rule 4(f)(3) stand on the same footing; and there is no requirement to apply Rule 4(f)(1) before Rule 4(f)(3) service is granted.

The court then took notice that IBP had not cited any authority to show that service by other means in this case would violate an international agreement; and that service by other means is not barred under the HSC. Richmond Techs., Inc. v. Aumtech Bus Sols., WL 2607158 at * 12 (N.D. Cal. July 1, 2011). The court then order that IBP’s US counsel be served.

Why You Should Still Seek Service Through the Hague Treaty First

While the logic in this order is sound, we would not advise clients to seek international service by other means in preference to service pursuant to the Hague Service Convention for the following reasons:

This is a minority opinion — most courts view Rule 4 as being hierarchical.

Sub rosa in this case is one federal court trying to wrestle a case from another federal court which is unusual.

If US courts were to routinely order service upon the US counsel of foreign defendants, then Hague Service Convention comity would be seriously undermined.

It thus seems likely that appellate courts will tamp down the practice of routine service upon US counsel of foreign defendants.

For more information about international service of process, contact us today to learn how we can assist you.

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]]>https://www.legallanguage.com/legal-articles/hague-service-v-alternative-service-is-there-a-hierarchy/feed/0SCOTUS Settles Mail Service Controversyhttps://www.legallanguage.com/legal-articles/scotus-settles-mail-service-controversy/
https://www.legallanguage.com/legal-articles/scotus-settles-mail-service-controversy/#respondWed, 24 May 2017 13:44:31 +0000https://www.legallanguage.com/?p=6538The single provision of the Hague Service Convention most litigated by US attorneys is service of process upon foreign defendants by mail. Hundreds of cases have dealt with the propriety of mail service resulting in a variety of holdings and a clear circuit split.]]>

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The Supreme Court holds that mail service is not prohibited by the Hague Service Convention.

The single provision of the Hague Service Convention most litigated by US attorneys is service of process upon foreign defendants by mail. Hundreds of cases have dealt with the propriety of mail service resulting in a variety of holdings and a clear circuit split. The Supreme Court just addressed the split in Water Splash v. Menon, No. 16-254, and a unanimous Court held that mail service is not prohibited by the Hague Service Convention.

Overview of Events Leading up to the Case

Water Splash is a Delaware corporation located in Texas that manufactures aquatic playground systems. Menon is a former Water Splash employee who resides in Canada. In 2013, after Menon allegedly started working for a competitor, Water Splash sued Menon in Texas Court for breach of contract. Water Splash obtained permission from the trial court to serve process upon Menon by mail.

When Menon failed to respond, a default judgement was entered. Menon then moved to have the judgment set aside because mail service did not “comport with the requirements of the Hague Service Convention.” The Texas Appellate and Supreme Courts agreed with Menon. Water Splash then appealed, citing the split in the circuits.

How the Court Came to its Final Ruling

Justice Samuel Alito began the Court’s opinion by reviewing international service of process under the Hague Service Convention. Briefly, the scope of the Convention is limited to service of judicial documents that are to be transmitted abroad. Under the HSC, all signatory countries are required to set up a Central Authority to accept requests for service of process upon defendants in their country.

In addition, at a signatory’s discretion, service may also be allowed by other means: including via diplomat (Article 8), mail (Article 10(a)), and private judicial officer (Article 10(b)). In the case of mail service, the official English language translation of Article 10(a) of the Hague Service Convention reads: “Provided the State of destination does not object, the present Convention shall not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Accordingly, “it would be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents.”

After dismissing Menon’s argument that the Convention is only applicable to a certain subset of documents, J. Alito addressed the ultimate source of confusion for international mail service. As noted above, the English translation of the Hague Service Convention uses the word “send” rather than the word “serve” in its provision allegedly authorizing mail service. Many courts have taken the view that to send documents abroad is not to serve documents abroad. But the Supreme Court dismissed this argument because:

It is at variance with the structure of the Convention. See Air France Saks, 470 U.S. 392, 397 (1985).

Assuming the meaning of the word “send” is not the same as the meaning of the word “serve,” “this would not imply that Article10(a) must exclude service. Instead, “send[ing]” could be a broader concept that includes service but is not limited to it.”

In the French version of the Convention, which is as authentic as the English version, it is clear that Article 10(a) contemplates “service” as it is understood in English.

That Article 10(a)’s “send” is to be interpreted as “serve” is supported by three other external sources. First, “the Convention’s drafting history strongly suggests that Article 10(a) allows service through postal channels.” Second, when “President Johnson transmitted the Convention to the Senate for its advice and consent, he included a report by Secretary of State Dean Rusk. That report stated that ‘Article 10 permits direct service by mail.’” Traditionally, the Court has given “great weight” to “the Executive Branch’s interpretation of a treaty.” Abbott v. Abbott, 560 U. S. 1, 15 (2010).

Finally, multiple foreign courts have held Article 10(a) mail service to be valid. Traditionally, the Court has given “considerable weight” to the views of other parties to a treaty.” Abbott, 560 U. S., at 16; see alsoLozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014).

“In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with . . . the freedom” to serve documents through postal channels.”

Accordingly, when service is required in a country party to the Treaty, “service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” See Brockmeyer, 383 F. 3d, at 803–804.

Does this mean that you can serve process by mail in all Hague Convention member countries?

No. A forum court statute must first trigger the mail service provision of the Treaty.

Federal Rule of Civil Procedure 4(f)(2)(c)(ii) authorizes the use of “any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt,” so cases filed in federal court are clearly supported by an “otherwise applicable law” authorizing mail service.

This satisfies the first prong of the Water Splash test – authorization by otherwise applicable law. Unfortunately, while Canada and a few countries in Western Europe have not objected to service via Article 10(a), most of the rest of the member countries throughout the world have objected to such service.

In addition, many state courts, unlike federal courts, do not explicitly authorize service by mail. In such states, absent a court order for service by other means, 10(a) mail service remains improper.

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]]>https://www.legallanguage.com/legal-articles/scotus-settles-mail-service-controversy/feed/010 Tips for Successful Cross Border Litigationhttps://www.legallanguage.com/legal-articles/10-tips-for-successful-cross-border-litigation/
https://www.legallanguage.com/legal-articles/10-tips-for-successful-cross-border-litigation/#respondMon, 06 Mar 2017 18:44:18 +0000http://www.yellowpageblues.com/?p=5154Whether your litigation is ultimately successful may turn on whether service of the originating process is properly effected and whether you are able to secure needed evidence located overseas. After 30 years of experience, LLS has compiled ten tips for successful cross border litigation.]]>

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The US imports 50% of the products it sells. Eighty percent of all products recalled are manufactured overseas. In 2015, 17% of the 234 securities class action lawsuits involved foreign defendants. In 2012, 27% of the IP cases filed in nine federal district courts had at least one party residing abroad. In short, a lot of litigation involves overseas defendants and witnesses which means there is a strong need for both service of process and evidence-taking abroad.

Whether your litigation is ultimately successful may turn on whether service of the originating process is properly effected and whether you are able to secure needed evidence located overseas. After 30 years of experience, LLS has compiled ten tips for successful cross border litigation.

1. Plan Ahead

It is never too early to plan your strategy for serving process or taking evidence from foreign defendants and witnesses. Ideally, your strategy for service and evidence will be in its final form at the time the complaint is filed.

2. Get a Certified Translation

Do not allow your documents to be translated by someone in your office or by your client. Many Central Authorities will reject requests for service or requests for evidence if the translation is poor. Furthermore, improper translation is a quashable defect costing extra time and money. LLS can provide certified translations for use in judicial proceedings around the world.

3. Manage the Client’s Expectations

If you will be required to take evidence abroad, it is essential to manage your client’s fee expectations. Fees will vary depending on whether the evidence sought is:

To be obtained pursuant to the Hague Evidence Convention or pursuant to a Letter Rogatory

Comprised of documents, testimony, or both

In need of translation

4. Abandon US-style Discovery Requests

When seeking documents from witnesses outside of the US, it is important to remember that:

Documents must be requested with specificity

Documents routinely discoverable in the US may often be protected abroad by privacy laws or blocking statutes

When requesting documents, you must convince the foreign court that your request is relevant, not overly broad, and should be granted in the interests of justice

5. Know that Depositions Can Be Risky and Expensive

Depositions can be either voluntary or involuntary. The key risk associated with voluntary depositions is that the witness may not appear. On the other hand, involuntary (compulsory) depositions are more expensive and are often taken not by the attorneys involved in the litigation, but by a foreign judge.

Local counsel should be retained. The advice of local counsel is invaluable when drafting the Evidence Request and seeking an Order from the foreign court.

6. The Consular Deposition Trap

In many foreign countries, voluntary depositions have to be taken at the US Embassy or Consulate. Embassies in many smaller countries (e.g., Iceland and Luxemburg) and Consulates in major counties (e.g., Japan) do not have rooms for depositions.

So, if the a deposition is taken outside the Consulate, it may occur in violation of the host county’s laws thus providing opposing counsel grounds to challenge whether a “consular deposition” has taken place.

7. Avoid DIY Forms from the Internet

There is no official form designated as a “Letter of Request” pursuant to the Hague Evidence Convention. Self-described “sample forms” can be found on the internet, but these forms typically list only the “elements” that must be included in the Letter without providing any guidance of how detailed or specific the elements must be.

Attorneys who use these forms often draft their Hague Letter of Request with an eye to convincing the US court to execute the Letter of Request without realizing the goal of the Request is to persuade the receiving court to grant the Request.

Worse, armed with no instruction on how to complete a sample Letter of Request form accessed on the internet, the US attorney will often commit fatal errors in requesting evidence from abroad. For example, a client once prepared an Evidence Request that indicated the US attorney, rather than the forum court judge, was the requesting authority.

8. Only One Witness per Letter of Request

Perhaps, the most common mistake of attorneys who use DIY internet forms for taking evidence abroad is that they request evidence from more than witness in a single letter. This is always a mistake.

When the Central Authority receives a Letter of Request, it forwards it to a trial court that has jurisdiction over the defendant. But if the US attorney has used one Letter of Request to request evidence from three witnesses in or around, for example, the German city of Munich, to which court does the Central Authority forward the Letter of Request if three different courts have jurisdiction over the three witnesses?

The best practice is to draft a Letter of Request for each witness from whom evidence is sought.

9. Letter Rogatory is more than a Letter of Request

To take evidence in a country that is not a member of the Hague Evidence Convention, a Letter Rogatory (“LR”) must be used. Like a Hague Letter of Request, there are no mandatory requirements for a LR. Still, certain language must be included in the LR. Because the LR is transmitted abroad by the US Department of State (DOS), the DOS does mandate the information to be included in the cover letter.

10. Use Expert Litigation Support

Choose an international litigation support company with experience serving overseas so that your documents get to the right place with the right paperwork. The company should be familiar with the rules of civil procedure in the country where service is to be effected or evidence is to be taken. Many countries will allow US attorneys to participate in the taking of evidence –something local counsel may not disclose.

LLS has been retained by many law firms who initially tried the DIY option themselves only to learn months later that service has failed. We invite you to contact us from the start of your foreign litigation for advice on how best to proceed with service and/or evidence-taking abroad. We’ll save you headaches and we’ll save your client money.

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]]>https://www.legallanguage.com/legal-articles/10-tips-for-successful-cross-border-litigation/feed/0US Supreme Court Will Finally Decide Applicability of Article 10(a) of the Hague Service Conventionhttps://www.legallanguage.com/legal-articles/us-supreme-court-will-finally-decide-applicability-of-article-10a-of-the-hague-service-convention/
https://www.legallanguage.com/legal-articles/us-supreme-court-will-finally-decide-applicability-of-article-10a-of-the-hague-service-convention/#respondWed, 04 Jan 2017 18:14:53 +0000http://www.yellowpageblues.com/?p=4007In the US, the Hague Convention’s use of the word “send” rather than “serve” almost immediately created a split in the Circuit Courts over whether documents “sent” via article 10(a) to a foreign defendant constituted valid service of originating process.]]>

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Are documents “sent” via article 10(a) to a foreign defendant valid? After more than 50 years, the Supreme Court is finally set to make a judgment.

The Summons is in the Mail

The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”) provides a means to obtain international service of process in 71 (as of December 2016) member countries.

Pursuant to Article 2 of the Convention, all signatories must establish a “Central Authority” to receive and facilitate requests from foreign litigants for service of originating process. Unless the destination country has made a declaration to the contrary, Article 10(a) allows litigants to bypass the destination country’s Central Authority by sending the documents to be served “by postal channels, directly to persons abroad.”

Article 10(a) states:

Provided the State of destination does not object, the present Convention shall not interfere with – a) the freedom to send judicial documents, by postal channels, directly to persons abroad… (emphasis added)

In the US, the Convention’s use of the word “send” rather than “serve” almost immediately created a split in the Circuit Courts over whether documents “sent” via article 10(a) to a foreign defendant constituted valid service of originating process. Indeed, there are essentially three different views on whether send = service:

Other courts in the 5th and 8th Circuits have taken the view that sending documents in the mail to overseas defendants lacks the formality necessary for service of process. Thus, in these Circuits, mail service is invalid. (Nuovo Pignone v. Storman Asia M/V, 310 F.2d 374, 384 (5th Cir. 2002); Bankston v. Toyota Motor Corp. , 889 F.2d 172 (8th Cir. 1989).)

Finally, there is the compromise position of the 9th Circuit – joined by virtually every other member country contemplating the validity of service by mail under the Hague Convention — that sending the documents pursuant to Article 10(a) has sufficient formality when the forum court also authorizes mail service in a similar domestic action and when the procedural rules for mail service are followed. (Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004).)

Thus many commentators in private international law have welcomed the decision by the US Supreme Court to hear Water Splash, Inc. v. Menon, No. 16-254 this term.

In Menon, the Texas Court of Appeals reversed the trial court’s decision that service by mail to a Canadian defendant was proper. The Court of Appeals was not persuaded that the authors of the Hague Convention made a careless error when they drafted Article 10(a) to permit litigants to “send” documents by mail instead of “serve” them by mail. After the Texas Supreme Court declined to review the decision, the Supreme Court did so on December 2, 2016.

How Will the Supreme Court Decide this Case?

Even the attorneys at LLS are split on this one! There are two main lines of reasoning:

Optional 1

One camp hopes the Court will consider both the “lack of formality” argument and the comity argument to hold that documents sent to a foreign defendant pursuant to Article 10(a) is not proper service. Both Nuovo Pignone and Bankston discuss in detail the lack of formality associated with sending documents via postal channels. Accordingly this argument will not be repeated here. Rather we focus on the comity argument.

In the preamble to the Hague Service Convention, one stated purpose of the Convention is to improve “mutual judicial assistance” for international service of process “by simplifying and expediting the procedure.” So, under the Convention, the more complex the rules for international service of process are, the less likely this goal is going to be met.

And as it turns out, the rules for international service of process are already complex. We have reduced the complexity in this post by not discussing service directed by the foreign Central Authority (see Article 5) or service arranged between judicial officers (see Article 10(b)). Still the mere fact that a country’s Central Authority (read: sovereignty) can be bypassed by documents sent to a defendant via a postal process creates all sorts of complexity.

The source of this complexity is the fact that each of the 71 signatories is allowed the option to make a declaration disallowing service pursuant to Article 10(a) in their countries. Many countries have indeed declared an objection to Article 10(a) service (for example: Germany, Switzerland, China, Japan and India). Many other countries either made no declaration with respect to Article 10(a) or declared no objection to such service (for example: the UK, France, Canada and the US).

The Supreme Court will take this disparity into consideration when deciding the case. If the Court deems service proper pursuant to Article 10(a) in countries that have not objected to mail service, the Court will create two classes of defendants based on formality. Defendants in Germany, China, Japan and India will be served observing all historic formalities related to service of process.

Meanwhile, in countries like the UK, France and Canada the only formality will be an illegible signature on the post office’s green card or Fed Ex tracking report. Somehow two classes of service for international defendants do not seem right.

Option 2

The other camp at LLS agrees with the reasoning of the 9th Circuit in Brockmeyer which held that mail service is permitted under the Hague Service Convention. The Court noted that the Hague Conference itself intended to permit service by mail and to decide otherwise would “contradict what seems to have been the implicit understanding of the delegates at the 1977 Special Commission meeting, and indeed of the legal literature on the Convention and its predecessor treaties.” Brockmeyer v May, 383 F.3d 798, 803 (9th Cir. 2004).

Whatever the Supreme Court decides, it will help solidify the foundations of the Hague Service Convention and its contribution to mutual international judicial assistance.